A chasmbetween ‘is’ and ‘ought’? A critique of the normative foundations of the SRSG’s framework and the guiding principles

In a world where corporations have large amounts of wealth and power, what are their obligations in relation to human rights? International discourse on this issue has, in recent years, centred around the ‘Protect, Respect and Remedy’ Framework (Framework) and the Guiding Principles on Business and Human Rights (GPs), which were developed during the mandate of John Ruggie, the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (SRSG). In these documents (and other ancillary reports), the SRSG has taken two strong and highly controversial positions, which will be the focus of this chapter. Firstly, he has claimed that corporations lack any binding legal obligations in relation to human rights; any responsibilities they have flow from social expectations rather than the law itself. Secondly, the SRSG contended that the responsibilities of corporations in relation to human rights must be distinguished from the obligations of the state: corporations primarily have a responsibility to respect human rights, which essentially means that they must avoid harming such rights. In other words, unlike states, corporations generally lack positive obligations to play an active role in realising or fulfilling those rights. In this chapter, I seek to evaluate the normative underpinnings of these two positions. I shall argue that the failure to engage with the moral foundations of human rights leads the SRSG to make several mistakes. The first part of the chapter will contest the SRSG’s claims relating to the lack of legally binding obligations upon corporations. I shall first provide arguments as to why a deeper understanding of the normative basis of the key international human rights instruments would lead to a different conclusion. These instruments, I argue, imply that corporations are indeed bound by them. I then turn to demonstrate the inadequacy of rooting the responsibilities of corporations in social expectations, as the SRSG seeks to do.